INTELLECTUAL PROPERTY (IP) ON PLANT VARIETIES BY: C DHANALAKSMI
INTELLECTUAL PROPERTY (IP) ON
PLANT VARIETIES
AUTHORED BY:
C DHANALAKSMI[1]
COURSE: B. Com. LL.B (HONS)
OCCUPATION:
UNDERGRADUATE.
INSTITUTION: The Tamil Nadu Dr.
Ambedkar Law University-SOEL.
ABSTRACT:
Intellectual
property (IP) protection for plant varieties, also known as plant breeders'
rights (PBR), is a form of sui generis IP protection granted to the breeder of
a new plant variety. PBRs provide breeders with exclusive rights to prevent
unauthorized commercial exploitation of their protected varieties, such as the
sale or production of propagating material. The objectives of PBRs are to
incentivize investment in plant breeding research and development, promote the
development of new and improved plant varieties, and ensure a fair return for
breeders' investments.There are two main international instruments governing
PBRs: the International Convention for the Protection of New Varieties of
Plants (UPOV Convention) and the World Trade
Organization's (WTO) Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS Agreement). The UPOV Convention establishes a
harmonized international system for granting and protecting PBRs, while the
TRIPS Agreement sets out minimum standards for PBR protection for WTO members.
PBRs are increasingly recognized as an important tool for promoting innovation
and sustainable agriculture. They have been shown to encourage investment in
plant breeding, leading to the development of new and improved varieties that are
more productive, disease resistant, and adapted to local conditions. PBRs also
play an important role in ensuring the availability of high-quality seed and
propagating material, which is essential for agricultural production.
KEY WORDS: Intellectual property, plant breeders' rights, plant varieties, UPOV
Convention, TRIPS Agreement, Innovation.
INTRODUCTION:
Intellectual property (IP) rights on plant varieties are a form of
intellectual property (IP) that protects new varieties of plants. Plant breeders
invest significant time, resources, and effort into developing new plant
varieties with desirable traits, such as increased yield, improved disease
resistance, or enhanced nutritional value. IP rights on plant varieties allow
breeders to recoup their investment and incentivize continued innovation in
plant breeding. There are two main types of IP rights that can be used to
protect plant varieties:
·
Plant
breeders' rights (PBRs): PBRs are a form of IP protection that is specifically
designed for plant varieties. They are granted by national or regional
governments, and they provide breeders with exclusive rights to produce, sell,
and export their protected varieties. PBRs typically last for 20-25 years.
·
Patents: Patents
can also be used to protect plant varieties, but they are typically more
difficult to obtain than PBRs. In order to be patented, a plant variety must be
new, non-obvious, and industrially applicable. Patents typically last for 20
years.
PLANT VARIETY:
Plant varieties are
categorized biologically below genus and species. Even if they may have very
different appearances, members of the same species can mate. Dogs are a single
species in the animal kingdom, but they breed together to produce a variety of
distinct looks and traits. Examples of these breeds include Labradors,
Spaniels, Sheepdogs, and others. These breeds have developed as a result of
parental selection. Because of the genes that it inherited; each has a unique
appearance. Plant varieties are conceptually related to animal breeds. Numerous
specific plant varieties are well-known; two examples are the eating apple,
Cox's Orange Pippin, and the rose, Peace. Cox's apples are identifiable by
their appearance and taste—they have an acidic, orange flavour—while Peace has
a distinct colour and aroma.
A plant variety must
be distinct from all others legally, meaning it must possess a unique
combination of features. recognized varieties, homogeneous (all plants, grown
in the same conditions, possess the same circumstances) and steady (plants can
be raised over several generations without experiencing changes in features).
Thus, the unique combination of features that define a plant variety. Modifying
a single characteristic (such color, leaf form, or growth pattern) can result
in a new variety.
PLANT VARIETY RIGHTS:
Plant Variety Rights
are an internationally recognized form of Intellectual Property (IP) used to
protect unique plant varieties. In theory, the use of plant variety rights is
comparable to the intellectual property protection provided by copyright on
books and patents on a variety of novel goods, including biological material.
The plant variety
rights system delivers protection and inspires further innovation in plant
breeding by ensuring that the varieties awarded plant variety protection are
freely available to others for use in future breeding programs. This access is
known as the ‘breeder’s exemption,’ and it has significantly supported the
major advances seen in plant breeding over the past 40 years. The plant variety
rights system allows plant breeders to amass royalties on the production and
sale of seeds of their protected varieties.
By guaranteeing that
the varieties granted plant variety protection are readily accessible to others
for use in upcoming breeding projects, the system of plant variety rights both
provides protection and encourages more innovation in plant breeding. The
"breeder's exemption," which refers to this privilege, has been a
major factor in the considerable advancements in plant breeding during the past
40 years. Plant breeders are able to accumulate royalties on the production and
sale of seeds of their protected varieties according to the plant variety
rights system.
CONDITIONS FOR PROTECTION:
According to the
provisions of the Protection of Plant Varieties and Farmer’s Right Act, 2001, a
new variety shall be registered subject to satisfying the requirements of
Novelty, distinctness, uniformity and stability.[2]
For new varieties, the genera and species which can be registered under the
Act, except farmer’s variety and extent variety will be notified by the Central
Government.[3]
NOVELTY:
The concept of
novelty in patent law is different from that in plant variety protection. The
condition of novelty is met under patent law if there has been no disclosure to
the public of the invention prior to the filing of the application. But under
the plant variety protection, condition of novelty is used in a commercial
sense. The requirement of novelty is satisfied if at the date of filing of the
application for registration for protection, the propagating or harvested
material of such variety has not been sold or disposed of with the consent of
the breeder for the purpose of exploitation of such variety, in India earlier
than one year.[4]
Sale or disposal outside India, in the case of trees and vines, shall be
considered as not novel if the sale is made earlier than six years and in other
cases, earlier than four years. Propagating material has been defined in the
Act as any plant or its component or part thereof including an intended seed or
seed which is capable of, or suitable for, regeneration into a plant.[5]
Thus, propagating material in relation to a plant of a particular plant variety
relevantly means any part or product from which another plant with the same
essential characteristics as that variety can be produced.
The “condition
required for protection” were set out in Article 6 of the UPOV Convention. The
variety had to be distinct, uniform and stable.
In a landmark
decision, the UK Patent Office has considered the issue of sale before
application.[6] It
was held that an agreement in the nature of a joint venture entered into for
the supply of budding eyes of a new rose, called Elizabeth of Glamis, in the
exploitation of the variety cannot be considered as sale of budding eyes by the
applicants to the objectors.
DISTINCTNESS:
The distinctness
condition in the UPOV Convention required the variety to be "clearly
distinguishable from any other variety whose existence is a matter of common
knowledge at the time when protection is applied for". Common knowledge
could be established, inter alia, by "marketing already in process".
The logic behind the
requirement of distinctness was clearly elucidated by the Board of Appeals of
the Community Plant Variety Office in various decisions.
“Plant variety
rights are special rights. The grant of such a right to a plant breeder is only
justified if the plant breeder has produced or discovered or developed a
variety eligible for protection. However, this is only the case if the expert
world and the business circles addressed are enriched with a new variety, the
genotypical distinctions of which are clearly able to be seen. Because third
parties are excluded from freely using the protected variety, for reasons of
legal certainty the protective scope of the right needs to be precisely
deter-mined, and it is not clearly definable if the different expressions are
not clearly identifiable. In order for competitors to be able to assess whether
they are violating any variety protection right, they must be able to clearly
identify at least one crucial distinctive characteristic. Minor differences are
insufficient to meet these requirements”.[7]
According to Plant
Variety Act of India, the distinctiveness of a variety is judged by reference
to the common knowledge of the variety. If a variety is distinguishable by at
least one essential characteristic from any other variety which is in common
knowledge, the variety is considered as distinct.[8]
The difference
between the Indian Act and the UK legislation is that the Indian Act requires
only distinction by at least one essential characteristic, while the UK Act
requires the variety to be distinguishable by one or more important
morphological, physiological or other characteristics from any other variety.[9]
UNIFORMITY:
The variety shall be
deemed to be uniform if, subject to the variation that may be expected from the
particular features of its propagation, it is sufficiently uniform in its
relevant characteristics.[10]
Uniformity of a variety is determined after allowing variations that might be
expected from the particular features of its propagation. Expected variations
of the variety will not be a bar to the requirement of uniformity. Thus, if the
variety is sufficiently uniform in the expression of characteristics which come
within the ambit of distinctness, the variety will be considered as uniform.
An extant variety
can be registered under the Act if it fulfils the requirement of distinctness,
uniformity and stability as specified in the regulations.[11]
The concept of
uniformity was considered in Moulin Winter Wheat[12]
by the Plant Varieties and Seeds Tribunal of the UK. Plant Breeding Institute
applied for the grant of plant breeder’s rights in addition to the UK National
list in respect of the winter wheat variety Moulin. The application refused on
the ground that the variety lacked uniformity. In appeal it was held that
sufficiently uniform meant the degree of uniformity a capable breeder skilled
in the art could reasonably be expected to achieve having regard generally to
the nature of plant material and particularly to the biological possibilities
of the species in question, including its mode of reproduction, and to any
special features of the variety in consideration. While deciding that the
variety is entitled to plant breeder’s rights, the tribunal observes:
1. A variety
which is sufficiently uniform within the meaning of the law achieves a grant of
rights and admission to the national list; and
2. Uniformity
issue should rightly be determined with the benefit of all available
technology, and that if this enables varieties to be properly identified in
accordance with the categories to which appropriate weighting can be attached,
then it must be taken into account in the testing process.
STABILITY:
Assessing stability
requires that the variety is stable. Plants have a tendency to degenerate.
Stability requires that the variety remains unchanged after repeated
propagation or in the case of a particular cycle of propagation, at the end of
each such cycle.[13]
Although stability is a requirement for variety protection, it is not a
characteristic that is included in the examination for distinctness of plant
varieties.[14]
Stability is, alongside distinctness and uniformity, an independent, necessary
characteristic that makes a plant grouping a variety.
A genotype
characteristic of a plant is expressed only if it manifests itself in a
different way compared with another plant. No statement can be made about
stability until after propagation, once several generations have been compared
with each other. If a plant variety reproduces faithfully from generation to
generation, it is said to be stable.
These are required
for every new variety, and the outcomes are evaluated by impartial specialists
to ascertain whether all prerequisites for plant variety rights have been
satisfied. For all species except trees, vines, and potatoes, which have a
30-year protection period, plant variety rights are awarded for 25 years.
PATENT PROTECTION:
Plant
varieties and essentially biological processes for the production of plants (or
animals) are still excluded from patent protection under Article 53(b) of the
European Patent Convention (EPC), despite the fact that the UPOV convention now
permits "double protection" in Europe. However, microbiological
processes and their products are explicitly excluded. The national laws of the
EPC Member States include comparable provisions. However, some other countries'
patent laws, such as those of the United States, Japan, and Australia, do not
impose restrictions on the patentability of plant varieties.
EU Member
States were required to modify their national patent laws pertaining to
biotechnology inventions after the European Parliament and Council of the
European Union approved Directive 98/44/EC on the Legal Protection of
Biotechnological Inventions (also known as the "Biotech Directive")
in July 1998. With a similar caveat pertaining to microbiological "or
other technical" processes, the Biotech Directive, like the EPC, forbids
patenting plant varieties or basically biological processes used in their
production. However, the Biotech Directive further elucidates this prohibition
by stating that patentability will be granted to plant-related inventions
provided their technical feasibility is not limited to a specific plant variety
and that a process will only be deemed essentially biological if it “consists
entirely of natural phenomena such as crossing or selection”.
PATENTS VERSUS PLANT VARIETY PROTECTION:
Patent
system seeks to protect novel inventions. Inventions to be patentable must be
new, non-obvious and capable of industrial application. The inventor in order
to obtain protection has to disclose the invention and also describe the method
of performing it. Patent protection will be granted only if the disclosure is
enabling.[15]
Patents to
DNA sequences may now be used to claim control over in entire plant. In
Monsanto Canada Inc. v. Schmeiser[16],
the Canadian Supreme Court held that even though plants may not be patented in
Canada, a patent relating to a plant cell gives its holder the right to decide
what others may do with the plant in question, since each plant cell contains
the modified gene. Thus it will be possible to obtain patent protection for
transgenic or genetically modified varieties. In such situations, the farmer
will be at a disadvantage as farmer's privilege could not apply under these
circumstances.
There are
various difficulties in applying the patent system to plant varieties. The
patent system was evolved to deal with mechanical inventions. Patent system is
designed and is suitable for inventions. It is not well adapted to the
protection of living material, such as new plant varieties.
The
structure of plant kingdom is such that it is not capable of being protected
like other inventions. Plants were thought not to precisely reproduce
themselves and their appearance can vary depending upon the environment in
which they are grown. The application of industrial property system to the
biological products has stimulated great debate as the patent system designed
for machines may not work with plant species and other life forms. Requirement
of reproducibility is intrinsic to patent law.
The more
specific objections to the patenting of plant varieties are that patent rights
require an invention, which the public can be taught to carry out by means of a
written description. Plant varieties were originally excluded from patentable
subject-matter because, as "products of nature", they did not meet
the requirement of new, non-obvious subject-matter.
They could
not be described with enough specificity to meet the patent statute, written
description requirement. The common argument raised against plant patents was
that plant varieties bred by traditional methods were not beyond the grasp of
the ordinary artisan and, hence, was obvious. Breeders' products were also
considered as lacking in industrial applicability or utility. Patents cover
inventions in all fields of technology, whereas the system of plant variety
protection has been specifically developed to cover plant varieties. There is a
close correspondence between the rights conferred by a patent and a plant
variety protection system, but there is a fundamental difference in the scope
of the exceptions and also in the rights conferred, including farmers' right.
Plant variety protection laws have been developed in almost all countries
providing sui generis protection for agricultural and horticultural innovation.
There are
arguments against patenting of plant varieties on the basis that patents cannot
be extended to cover life and that life cannot be invented. Patenting living
organisms is intrinsically immoral, or will have unacceptable results. Most of
the courts had in the past taken the view that inventions related to plant
breeding were not patentable per se. But this approach found a radical change
with the Red Dove[17]
decision of the German court and the decision of the US Supreme Court in
Diamond v. M. Chakrabarty[18].
INTERNATIONAL LEGAL FRAMEWORK:
Globalization
of trade and commerce has now given an international character to intellectual
property. Before the existence of any international convention, it was
difficult to obtain protection in many countries due to the diversity in the
national laws. Globalization necessitated harmonisation of industrial laws. The
international character of intellectual property is recognised in the various
international conventions.
UPOV CONVENTIONS:
The International
Union for Protection of New Varieties of Plants (UPOV) Convention provides the
international legal framework for the granting of plant breeders' rights which
are a key element in encouraging breeders to pursue and enhance their search
for improved varieties with benefits such as higher yield, quality and better
resistance to pests and diseases. Enhancing international harmonisation is an
indispensable tool for the protection of new plant varieties, for international
trade and for the transfer of technology. Most of the plant variety
legislations around the world are based on the UPOV legislation.
Protection of
intellectual property rights on new plant varieties according to the UPOV
Convention facilitates a return by providing a legal basis to prevent under
well-defined conditions, unauthorised exploitation of plant varieties by
others. The UPOV Convention provides a legal basis for the protection of new
plant varieties. Breeders in all members of the UPOV Convention enjoy the same
level of protection.
The UPOV Convention
is a sui generis system for plant variety protection reflecting the specific
feature of the subject of protection, which is a new plant variety and the
circumstance under which this plant variety is used. A key feature of the UPOV
system is that protected varieties, as a most important plant genetic resource,
may be freely used by the worldwide community of breeders for further breeding.
Plant breeders' rights thereby help to enhance sustainable agriculture,
productivity, income, international trade and economic development in general.[19]
The contracting
parties to the convention are the members of the Union' and the Union has legal
personality. By becoming a member of UPOV, a State offers its own plant
breeders the possibility of obtaining protection in the other Member States and
provides an incentive to foreign breeders to invest in plant breeding and seed
production on its own territory.
embers of the UPOV
Convention, enjoy many benefits like an internationally accepted sui generis
system, benefit of priority, cooperation in examination, technical guidance,
etc. The Convention provides the benefit of priority from the date of the first
application for protection of the same plant variety previously filed in one of
the UPOV Convention member countries.' The breeder shall enjoy a right of
priority of 12 months. In order to benefit from the right of priority, the
breeder shall, in the subsequent application, claim the priority of the first
application
KEY ADVANTAGES OF UPOV CONVENTIONS:
The following are
the primary benefits of the UPOV Convention with regard to plant variety
protection:
·
consensus on fundamental ideas: diversity and
breeders, genera, and species that need to be preserved;
·
Regulations pertaining to national treatment and
priority, which delineate the relationships among Union members and furnish the
lawful framework that enables citizens and inhabitants of one member state to
obtain safeguards within the domains of other members;
·
The conditions for the grant of protection: novelty,
distinctness, uniformity and stability, and a suitable variety denomination;
·
a minimal level of security;
·
shortest possible protection period; and
·
a precise outline of the conditions necessary to
revoke or nullify the breeder's rights.
BENEFITS OF IP RIGHTS ON PLANT VARIETIES:
·
Encouraging
innovation: IP rights provide breeders with a financial incentive to
invest in research and development. This can lead to the creation of new plant
varieties with improved traits, which can benefit farmers, consumers, and the
environment.
·
Promoting
fair competition: IP rights help to create a level playing field for plant
breeders, by preventing others from benefiting from their innovations without
their consent. This can encourage competition and lead to further innovation.
·
Protecting
farmers' rights: IP rights can also be used to protect the rights of
farmers, by ensuring that they have access to the genetic material that they
need to grow crops.
DRAWBACKS OF IP RIGHTS ON PLANT VARIETIES:
·
Increased
costs: IP rights can increase the cost of seeds and other plant
propagating material. This can make it difficult for farmers in developing
countries to access new technologies.
·
Limited
access to genetic material: IP rights can restrict access to genetic material,
which can hinder research and development.
·
Concentrating
power in the hands of a few: IP rights can concentrate power in
the hands of a few large companies, which can give them too much control over
the food supply.
Overall, IP
rights on plant varieties can be a valuable tool for promoting innovation and
protecting the rights of breeders and farmers. However, it is important to
balance the benefits of IP rights with the potential drawbacks.
TRIPS AGREEMENT: WTO AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL
PROPERTY RIGHTS:
In the realm of
international trade, intellectual property (IP) rights play a crucial role in
fostering innovation, protecting creative endeavours, and promoting
technological advancements. The World Trade Organization's (WTO) Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) stands
as a landmark accord that establishes a comprehensive framework for the
protection and enforcement of IP rights across the globe. Introduced as Annex
1C of the Marrakesh Agreement Establishing the World Trade Organization in
1994, the TRIPS Agreement has since become an integral component of the WTO's
legal system, shaping the global landscape of IP rights.
Trade-Related
Aspects of Intellectual Property Rights (TRIPS Agreement) is an international
Agreement that requires member countries to provide strong intellectual
property protection in their domestic law. The recent developments in the field
of biotechnology and plant breeding have led to widespread piracy of resources
from the developing countries. Intellectual property protection provided by
countries to pirate the technological developments of the developed countries.
The developed countries under the leadership of the US wanted to have a strong
system for the protection of the new t4echnologies. Hence the issue of
intellectual property protection and also protection for plant varieties was
addressed in the Uruguay Round of General Agreement on Tariffs and Trade. TRIPS
Agreement provides that members mat exclude essentially biological processes
for the production of plants or animals other than non-biological and
microbiological process.[20]
However, the agreement states that members shall provide for the protection of
plant varieties either by patents or by an effective sui generis system or by
any combination thereof. Considerable flexibility is left to the members of the
agreement to adopt the system of protection suited to them. At the time of
adoption of he TRIPS Agreement, most of the developed countries had systems for
protection of plant varieties and most of them had adhered to the UPOV
Convention.
But most of the
developing countries have an agricultural economy and so protecting the
interests of the breeders in preference to farmers can have a detrimental
effect on the economy of the country. Taking UPOV as international platform can
also have consequences as the 1991 version of UPOV is more suited to the
interests of the breeders rather than the farmers. Traditional and improved
varieties of plants are bred by farmers under local farm conditions. Farmer
identifies and improves seeds and also adds to the general pool of resources. UPOV
system has been tested in the western countries that already have a developed
plant breeding system.
OBJECTIVES
AND SCOPE:
The TRIPS
Agreement sets forth a set of fundamental objectives that guide its
implementation:
1.
Reduction of Trade Distortions: The agreement seeks to minimize
distortions and impediments to international trade, ensuring that IP rights do
not act as unwarranted barriers to the flow of goods and services.
2.
Effective IP Protection: The agreement establishes minimum
standards for the protection of intellectual property rights, ensuring that
creators and inventors receive adequate safeguards for their works.
3.
Balanced IP Enforcement: The agreement promotes fair and
effective enforcement of IP rights, preventing the abuse of IP protections that
could hinder legitimate trade.
4.
Technology Transfer and Dissemination: The agreement aims to facilitate the
transfer and dissemination of technology, recognizing the role of IP in
fostering innovation and knowledge sharing.
The TRIPS
Agreement encompasses a broad spectrum of IP rights, including copyrights,
trademarks, patents, industrial designs, integrated circuits, trade secrets,
and plant breeders' rights. These rights encompass a diverse range of creative
and inventive expressions, from literary and artistic works to technological
innovations and proprietary knowledge.
KEY
PROVISIONS AND IMPLICATIONS:
The TRIPS
Agreement establishes a set of key provisions that have far-reaching
implications for the global IP landscape:
1. Minimum
Standards of Protection: The agreement mandates that all
WTO members adhere to minimum standards of protection for the covered IP
rights. This ensures a consistent level of protection across jurisdictions,
providing creators and inventors with a predictable legal environment.
2. National
Treatment and Most-Favored-Nation Treatment: The
agreement mandates national treatment, ensuring that WTO members treat
nationals of other WTO members no less favorably than their own nationals with
regard to IP rights. Additionally, the most-favored-nation treatment principle
requires WTO members to grant nationals of all WTO members treatment no less
favorable than that granted to nationals of any other country.
3. Dispute
Settlement Mechanism: The agreement establishes a dispute settlement mechanism
for resolving disputes between WTO members over the interpretation and
application of the agreement. This mechanism provides a neutral forum for
resolving IP-related disputes, promoting adherence to the agreement's
provisions.
PLANT
VARITIES PROTECTION AND FARMER’S
RIGHTS IN
INDIA:
TRACING HISTORY:
For
decades, India did not allow patents on seeds or plants and had no system of
protection for plant varieties. Indian policy was based on the concept that
plant varieties and seeds were the common heritage of mankind. Though there was
an increase in the rate of growth in agriculture, the State could not meet the
rising demand for the food. The need for attaining self-sufficiency in food led
to the pursuit of the green revolution. During the colonial period, food
production was on the decline. Alleviation of poverty could be done only by
attaining self-sufficiency in food production which could be obtained only by
excluding plant varieties from protection.
The
foremost legislation in India for the protection of seeds was the Seeds Act,
1966 which provided for regulating the quality of certain seeds for sale.[21]
The Act exempts from its purview the sale from own holding of notified kinds of
seeds.[22]
Seed breeding in India was largely in the public sector. India did was largely
in the public sector. Indian did not want monopolies to develop in crucial
areas like agriculture and, hence, the government made seeds and distributed it
cheaply to the public.
The
Patents Act, 1970 specifically excludes plants and animals in whole or any part
thereof including seeds, varieties and species and essentially biological
processes for production of plants and animals from the ambit of patent
protection.[23]
Being a
signatory to the TRIPS Agreement, India had to shift from its age old principle
of common heritage and was obliged to provide either a patent protection or a
sui generis system of protection or a combination thereof to plant varieties.[24]
Breeders rights provide incentive only to the seed industry without taking into
consideration the interests of the farmers. The seed sector wanted a plant
breeders protection system modelled on the lines of the UPOV Convention to be
adopted in India without considering the farming community. They proposed this
system as an alternative to the patent system. Being an agrarian economy,
patent protection for plant varieties was not considered to be in the interest
of the country and India opted for a sui generis legislation. The Indian
situation demanded a balancing of the rights of the farming community and the
breeders. The enactment of the Protection of Plant Varieties and Farmers'
Rights Act, 2001 saw an end to the heated debates of protecting the interests
of the farmers alongside that of the breeders.
SOME NOTABLE COURT CASES THAT HAVE ADDRESSED INTELLECTUAL PROPERTY (IP)
RIGHTS ON PLANT VARIETIES:
1. LIMAGRAIN
GETREIDE GMBH V. AGRI SA AND OTHERS, [2012].
This
landmark case involved the validity of Community Plant Variety Rights (CPVRs)
for certain hybrid maize varieties. The European Court of Justice (ECJ) held
that the CPVRs were valid because the varieties were sufficiently distinct,
uniform, and stable. This decision has had a significant impact on the scope of
CPVR protection for plant varieties.
2. MONSANTO
TECHNOLOGY LLC V. BAYER CROPSCIENCE AG, [2018].
This case
involved the question of whether a breeder's exemption under the International
Convention for the Protection of New Varieties of Plants (UPOV) allowed a seed
producer to use a protected variety to develop a new hybrid variety without the
authorization of the holder of the CPVR for the protected variety. The ECJ held
that the breeder's exemption did not allow the seed producer to do so without
the authorization of the holder of the CPVR. This decision has had a
significant impact on the scope of the breeder's exemption under UPOV.
3. BREEDERS'
FOUNDATION V. CONSEJO DE LA ADMINISTRACIÓN AGRARIA, [2010]
This case
involved the question of whether a Spanish national law that allowed farmers to
save and re-sow seeds of protected plant varieties was compatible with EU law.
The ECJ held that the Spanish law was not compatible with EU law because it
undermined the effectiveness of the UPOV system. This decision has had a
significant impact on the scope of the farmer's privilege to save and re-sow seeds.
4. DELTA AND
OTHERS V. EUROPEAN COMMISSION, [2013]
This case
involved the question of whether the European Commission had acted lawfully in
approving a genetically modified (GM) carnation variety for cultivation and
sale in the EU. The General Court of the European Union (GC) held that the
Commission had not acted lawfully because it had not adequately assessed the
risks of the GM carnation variety. This decision has had a significant impact
on the approval process for GM plant varieties in the EU.
5. SAATGUT-TREUHAND
SACHSEN E.V. V. BUNDESANSTALT FÜR LANDWIRTSCHAFT UND ERNÄHRUNG, [2018]
This case
involved the question of whether a German national law that allowed farmers to
exchange small quantities of seeds of protected plant varieties for
non-commercial purposes was compatible with EU law. The ECJ held that the
German law was compatible with EU law because it did not undermine the
effectiveness of the UPOV system. This decision has had a significant impact on
the scope of the farmer's privilege to exchange seeds.
CONCLUSION:
Plant
breeders' rights (PBRs), or intellectual property (IP) protection for plant
varieties, have the potential to be extremely important for fostering
innovation and sustainable agriculture. Breeders can be given the resources and
incentives necessary by PBRs to create new and improved plant varieties that
are more resilient to disease, more productive, and more suited to their
particular environments. PBRs can also aid in guaranteeing the availability of
superior seed and propagation materials, both of which are necessary for
agricultural output.
PBRs may,
however, have unfavourable effects on farmers and food security. PBRs have the
potential to drive up seed costs and limit farmers' access to seed, especially
small-scale farmers in developing nations. They may also limit farmers' freedom
to collect, utilize, and trade seeds—all of which are customary practices
crucial to preserving agrobiodiversity.
REFERENCES:
BIBLIOGRAPHY
AND WEBLIOGRAPHY:
·
Elizabeth Verkey, Intellectual
Property, 1st Edition, 2015.
·
Dr. B.L.Wadehra, Law Relating to Intellectual
Property, 5th Edition, 2016.
·
Elizabeth Verkey & Jithin Saji Isaac, Intellectual
Property, 2nd Edition, 2023.
[1] The Tamil Nadu Dr. Ambedkar Law
University- SOEL
Email
id: dhanalaksmi2003@gmail.com
[2] PPVFR Act, S. 15(1).
[3] Ibid, S. 29(2).
[4] Ibid, S. 15(3)(a).
[5] Ibid, S. 2(r).
[6] Elizabeth of Glamis v. Rose, 1966
FSR 265.
[7] Hubert Brandkamp, Case A 018 Of
2002, decided on 14-5-2003 (CPOV).
[8] PPVFR Act, S. 15(3)(b).
[9] UK Plant Variety Act, 1997, Sch.
2, Part 1, para 1.
[10] UPOV 1991, Art. 8
[11] PPVFR Act, S. 15(2).
[12] 1985 FSR 283.
[13] Council Regulation (EC) No.
2100/94 on Community Plant Variety Rights, Art. 9
[14] Joseph en Luc Pieters BVBA,
Schierveldestraat, Staden- Oostnieuwkerke, Belgium, Case A 001/2002, A
002/2002, decision on 1-04-2003 of the board of Appeal of the Community Plant
Variety Office, relating to Community Plant Variety Rights Applications No.
1997/0392/0393/0394.
[15] European Patent Convention, Art.
83; Patent’s Act, 1970, S. 10.
[16] 2004 SCC 34: (2004) 1 SCR 902 (Can
SC).
[17] Rote Taube case, 1969 GRUR 672.
[18] 65 L Ed 2d 144: 447 US 303 (1980).
[19] UPOV Press Release No. 65, Geneva,
29.06.2005
[20] TRIPS Agreement, Art. 27(b).
[21] Seeds Act,1966, Preamble.
[22] Ibid, S.24.
[23] Patents Act, 1970, S. 3(j)
[24] TRIPS Agreement, Art. 27(3)(b).